The collegium system for appointing judges had its drawbacks. But the panel that is set to replace the collegium is not without serious flaws either
That critical moment, which the entire legal fraternity and constitutional experts have been waiting, has finally arrived. On April 13, the National Judicial Appointments Commission Act, 2014, along with the Constitution (Ninety-ninth Amendment) Act, 2014, came into force. The new laws introduce a fresh mechanism to appoint judges of the Supreme Court and High Courts, that will ultimately lead to the scrapping of the existing collegium system for appointments.
Both Acts was notified by the Union Government, after the request to keep the law on hold was turned down by a three-judge Bench, headed by Justice AR Dave. Since most issues raised in the public interest litigations were constitutional in nature, Justice Dave transferred the matter to the five-judge constitutional Bench, which is now headed by Justice JS Khehar
Since the matter is under the active consideration of the highest court of the land, it will be improper to air personal views and assessments about the merit of either side of the argument at this point of time. Still, a few issues of public interest may be highlighted.
First, is the unanimity and solidarity displayed by elected representatives in both Houses of Parliament in supporting and passing these two Bills with such urgency. What made bitter political rivals bury their hatchets on this issue and agree to vote so overwhelmingly in favour of the Bills is a mystery. What interest binds bitter enemies, of diverse political outlook, on this issue is a matter of wild speculation.
Second, the alacrity and speed with which the two Bills were passed in both Houses of Parliament and nearly 20 State Assemblies, is also striking. Both were passed in Parliament after opposition parties fell in line with the Government.
However, attempts by the political class to project the National Judicial Appointments Commission as a harbinger of transparency must be viewed with caution. Politicians have an axe to grind against the higher judiciary which has often given discomforting judgements. For example, the judiciary, in a bid to cleanse the political system, ordered that elected leaders declare their assets, educational qualifications and criminal antecedents.
There can be no denying that the existing collegium system has a number of shortcomings. Disturbing examples of corruption in the higher judiciary has been brought to public knowledge through sensational disclosures by jurists themselves. However, such shortcomings should be addressed through judicial accountability mechanisms; they must not become an excuse to rob the judiciary of its independence. The political class's decision to abolish the collegium system allows the executive to call the shots in the appointment of judges. This is a clear case of throwing the baby out with the bath water.
Indeed, this is the greatest assault on the judiciary by the political class. It is a fact that if there is any entity in our polity that can rein in the legislature and executive from abusing their powers, it is the judiciary. However, if the judiciary itself is tamed and turned into a pet, through pliant appointments by the political class, who will save the citizens from the tyranny of the legislature and the executiveIJ